Supreme Court rules against public employee unions in Janus

Doug Finke State Capitol Bureau @DougFinkeSJR

Wednesday

Jun 27, 2018 at 9:10 AMJun 27, 2018 at 10:20 PM

In a blow to public employee labor unions, the U.S. Supreme Court Wednesday overturned a 41-year-old precedent and ruled in favor of an Illinois state employee who said he should not be forced to pay fair share fees to the union that represents his job.

In a 5-4 decision, the court sided with Mark Janus, who contended his free speech rights were violated by being forced to pay fair share dues to the American Federation of State, County and Municipal Employees. Janus works as a child support specialist for the Department of Healthcare and Family Services. The job is a union position represented by AFSCME.

The opinion will mean immediate changes for Illinois state workers. Gov. Bruce Rauner said the state will stop withholding fair share fees from non-union member paychecks. He also said state workers will be notified of the ruling and "be given an opportunity to modify their union status." He said the average unionized state employee pays more than $900 a year in fees.

The case, which was pursued by conservative organizations and originally launched by Rauner, involved fair share fees. Fair share fees are charged to people in union jobs who do not wish to join the union and pay full union dues. The fees are supposed to help cover the union’s costs in negotiating contracts on behalf of workers in union jobs.

Although fair share fees are not allowed to be used for political activities, Janus contended that anything a public employee union does is inherently political. That means he is required to support activities that he may not endorse. Janus said he paid about $50 a month in fair share fees.

"Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities," said Justice Samuel Alito writing for the majority. "We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."

Alito said it is impossible to precisely draw a line between expenses that can be charged for fair share fees and full union dues. He also said the previous decision allowing fair share fees was poorly thought out and has proven to be unnecessary.

The four liberal members of the court joined in a dissent. Justice Elena Kagan said the decision "will have large-scale consequences."

"Public employee unions will lose a secure source of financial support," she wrote. "State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways."

AFSCME contended the fair share fees only offset their costs of representing workers like Janus in contract negotiations and other labor issues. The unions oppose what they term "free riders," people who benefit from union activities, but who do not wish to pay to help cover the unions’ costs. Unions are worried the decision could leave them financially crippled.

AFSCME represents about 38,000 state workers. The union said it represents about 75,000 workers in total in Illinois, about 10 percent of whom are fair share workers. For AFSCME members, fair share fees are 78 percent of full union dues.

In an interview, Janus said it’s actually the other way around.

"They’ve been free riding on me ever since I had to start paying these fees that I didn’t want to pay and didn’t have a choice to pay," said Janus, who insisted he did not realize his job was a union position when he took it in 2007. "They’ve been getting all of this money from me without my consent because it’s part of Illinois law. I look at it like they’ve been free riding me."

Janus did not make any predictions if there would be large numbers of workers opting out of being union members.

"It is up to the individuals to make their own choice, which is what we’ve been advocating all this time," he said.

But according to his own experience at work, there likely will be some.

"I just have the pro-union people who pretty much just ignore me, they don’t speak to me," Janus said. "But I have a lot more of them that are pro my side or pro-worker rights who support me and are very, very encouraging."

AFSCME executive director Roberta Lynch called the case a "blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions."

"We are extremely disappointed the Supreme Court has taken the side of the powerful few, but we’re more determined than ever to keep our union strong," Lynch said in a statement. "The powerful interests behind this case have tens of millions of dollars to pour into their political agenda of trying to silence us, but we aren’t afraid and we aren’t going anywhere."

Rauner initiated a lawsuit challenging the fair share fees shortly after taking office in 2015. However, the courts said he did not have standing to bring the lawsuit.

Janus then became the lead plaintiff on the lawsuit that was heavily supported by a number of organizations supporting right-to-work laws.

Rauner issued a statement calling the decision "pro-worker and pro-taxpayer."

"For decades, Illinois workers have been forced to pay partial union dues against their will," Rauner said. "The practice infringed on the constitutional rights of public sector workers who were asked to give up their First Amendment rights as a condition of employment. This decision fairly reinstates those rights."

A study last month from the Illinois Economic Policy Institute and Project for Middle Class Renewal at the University of Illinois determined that a ruling in Janus’ favor would lead to hundreds of thousands of fewer union members which would erode union bargaining power. That, in turn, would lead to lower wages for unionized employees which would then cause a ripple effect of more than $30 billion in lost economic activity, the study said.

Janus said he doesn’t believe the ruling will lead to the ruin of public employee unions.

"It’s pretty much poppycock," he said. "Unions will still be able to collective bargain. For years the federal government employees have not had to pay fair share fees. The federal government unions are surviving. They’re doing very well."

Reaction from some state workers was mixed. Andrew Spiro, 59, a records archivist for the Secretary of State, said he is a union activist.

"If people don’t want to be in the union, that’s fine," said Spiro, who is a member of the Illinois Federation of Public Employees. "If they don’t want to pay their dues, that’s fine, but then they should not be under the contract. They should not be able to freeload off the dues payers who want to band together because they’re stronger together."

However, two workers who pay fair share fees to SEIU, which represents Secretary of State employees, said they are pleased with the decision.

"Personally, I’m happy about it," said Darla Smith, 58. "I wasn’t a fan of our union anyway and I don’t think that they do that much."

She said she believes money is used for political purposes "and there’s a lot of people who may not want that."

Sarah Thomas, 39, who works in administrative hearings, said she thinks the union sometimes does things she disagrees with, but could not point to a specific instance.

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